# Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A093

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

RECORD — |
AND JUN 1 2 2012
BRIEFS No. 10-1491 OFFICE OF THE CLERK

In The st
Supreme Court of the United
States
ESTHER KIOBEL, et al.,
Petitioners,

Vv.

ROYAL DUTCH PETROLEUM CO., et al.,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit

BRIEF OF PROFESSORS OF CIVIL
PROCEDURE AND FEDERAL COURTS
AS AMICI CURIAE ON REARGUMENT

IN SUPPORT OF PETITIONERS

Theresa M. Traber Allan Ides
Bert Voorhees Counsel of Record
Traber & Voorhees Loyola Law School

128 N. Fair Oaks Ave. Los Angeles
Pasadena, CA 91103 919 Albany Street

(626) 585-9611 Los Angeles, CA 90015
tmt@tvlegal.com (213)736-1464
bv@tvlegal.com idesa@lls.edu

TABLE OF CONTENTS

Page
Ne Be i iccitescceccocdccsoncccccececceseecenes il
INTEREST OF AMICI CURIA. .............000000.0-.00.0...: 1
SUMMARY OF ARGUMENT ......................cccc cc ceeeee es 1
FERS a on ree ea ne Ee ne eT en ET 2
EXISTING DOCTRINES ARE ADEQUATE
TO ADDRESS ANY CONCERNS
RAISED BY TRANSNATIONAL
ALIEN TORT STATUTE CASES .............00.... 2
TET, TILT Mame anne nen Eee 2
A. PERSONAL JURISDICTION ............. 7
B. FOREIGN POLICY CONCERNG...... 11
3. POLITICAL QUESTION
ASR ee 12
2. ACT OF STATE
RE mar 15
3. aaa a 17
C. FORUM NON CONVENIENS .......... 19
D. EXHAUSTION OF DOMESTIC
SR EET Ee Sen 27
a 30
APPENDIX LIST OF AMICI CURIAE. ................. A-1

Page(s)
CASES
Aguinda v. Texaco, Inc.,
908 F.3d 470 (Se Cir. 2008) ......000cccccceesessceeseseee 21

Aldana v. Del Monte Fresh Produce N.A., Inc.,
578 F.3d 1283 (11th Cir. 2009).................. 22, 25

Alperin v. Franciscan Order,
423 Fed. Appx. 678 (9th Cir. 2011) .................. 13

Am. Ins. Ass’n v. Garamendi,
I i ssasnaianianna 13

Asahi Metal Indus. Co. v. Super. Ct.,
I a accented 9g

Baker v. Carr,
I etiam 13

Banco Nacional de Cuba v. Sabbatino,
ey Ce Ee ccscccccncncstcncstashsesssucess 15, 28

Bancoult v. McNamara,
i ciclinaeiilionene 13

Barboza v. Drummond Co.,
No. 06-61527, slip op. (S.D. Fla. July 17,
I ahd aaa aed aaa al i lala ciciateteaie 21

Bigio v. Coca-Cola Company,
448 F.3d 176 (2d Cir. 2006) ....................... 18, 26

-ji-

Blackmer v. United States,

Se Ws Ne QD sinc ceccnncsvescesececoucncsseseeees

Burger King Corp. v. Rudzewicz,

ee i iccicnanicntitnscctmveesnnsesiintesiie

Burnham v. Super. Ct. of Cal.,

a ee CD cr ccneccnecrnnnsensssonstnannsnesiee

Carmichael v. Kellogg, Brown & Root Serv.,
572 F.3d 1271 (11th Cir. 2009)..................

Castille v. Peoples,

ee Be I iccnenccnisewincessconcsiemmnnnies

Clayco Petroleum Corp. v. Occidental
Petroleum Corp.,

712 F.2d 404 (9th Cir. 1983)......................

Corrie v. Caterpillar,

503 F.3d 974 (9th Cir. 2007)...................0

Doe v. Exxon Mobil,

ee I a icccsccetcenscccsencsnseisessesecess

Doe v. Exxon Mobil Corp..,

654 F.3d 11 (D.C. Cir. 2011)......................

Doe v. Israel,

400 F. Supp. 2d 86 (D.D.C. 2005)..............

Doe v. Lui Qi,

349 F. Supp. 2d 1258 (N.D. Cal. 2004)......

El-Shifa Pharm. Indus. v. United States,

607 F.3d 836 (D.C. Cir. 2010).............0..

Ex Parte Royall,

Se ee ee Me ciiiisescceinicchiehinisccssidiidiecabaiiciniesibaaide 30
Exxon Mobil Corp. v. Doe,

Ce 14
Gonzalez-Vera v. Kissinger,

449 F.3d 1260 (D.C. Cir. 2006)......................... 14
Goodyear Dunlop Tires Operations, S.A. v.

Brown,

8. 0 ESE Serene passim

Gulf Oil Corp. v. Gilbert,
ee He I icciccninciitcnidnccnadtnniencennnated 20, 21

Helicopteros Nacionales De Colom. v. Hall,
I, Cu elaeetsipenennnl 8

Hereros v. Deutsche Afrika-Linien Gmbit &
Co.,
232 Fed. Appx. 90 (3d Cir. 2007)...................... 14

Hwang Geum Joo v. Japan,
ae are ee is Ge Ce iitccecctsececnctcetinccnces 14

Intl Shoe Co. v. Washington,
es I iithitactnncinncincsenscnssseniinieions 7, 8,9

Iowa Mut. Ins. Co. v. LaPlante,
ESE NE ae one Te 30

J. McIntyre Mach., Ltd v. Nicastro,
ee ee es Psisisniseninniidnbnacnnndccicienananin 7,10

Japan Whaling Ass'n v. Am. Cetacean Soc.,
I i et 12

Jean v. Dorelien,
rx by Tih Le = = enone 29

Laker Airways Ltd. v. Sabena, Belgian World
Airlines, .
Fae Bee ee Gs GRR BEI oncccncccacenesicvecccnscecces 4

Licea v. Curacao Drydock Co.,
537 F. Supp. 2d 1270 (S.D. Fla. 2008).............. 23

Linder v. Portocarrero,
O63 F.Ba SSS (1 Utes Civ. 1GBR).....0.ccccccsccccccoscesecs. 4

In re Maxwell Commc’n Corp.,
93 F.3d 1036 (2d Cir.1996) .....................006. 17,19

McCarthy v. Madigan,
SR TD NOD RAT een r ne 30

Oetjen v. Cent. Leather Co.,
I alas 13

Perkins v. Benguet Consol. Mining Co.,
ee: SI I iiccceeiencescaainienapideibeiiiiontasenitoasaiactnnn 4

Piper Aircraft Co. v. Reyno,
ey SI aicinstesiniccninccetincdinninaienniiin 21, 24

Presbyterian Church of Sudan v. Talisman
Energy, Inc.,
244 F. Supp. 2d 289 (S.D.N.Y. 2008).......... 23, 24

Quackenbush v. Allstate Ins. Co.,
gk ST ITI ns aa TNR BP 20

Rasoulzadeh v. Associated Press,
574 F. Supp. 854 (S.D.N.Y. 1983)..................... 22

-V-

Republic of Austria v. Altmann,

ESTE ae Or er 4
Sarei v. Rio Tinto plc,
bP Ff of. fe | nenres 29
Sarei v. Rio Tinto,

487 F.3d 1198 (Btia Cir. 2007)......cccccsccccsesccesccs. 14
Sarei v. Rio Tinto,

650 F. Supp. 2d 1004 (C.D. Cal. 2009) ............ 29
Sarei v. Rio Tinto,

671 F.3d 736 (9th Cir. 2011).................cc00 14, 29
Schneider v. Kissinger,

GEE Fe Be re CR, BD coccciceccsecccceccscsecses 14
Shaffer v. Heitner,

I 7
Sinochem Int'l Co., Ltd. v. Malaysia Int

Shipping Corp.,

RR Ane eae a 20

Skiriotes v. State of Florida,
ES RE EE Te Le ne a 4

Societe Nationale Industrielle Aerospatiale v.
United States Dist. Court for the S. Dist. of

lowa,

I iii cst 17
Sosa v. Alvarez-Machain,

ERE AE Re ee aoe 5, 12,16

-Vi-

Turedi v. Coca Cola Co.,

343 Fed. Appx. 623 (2d Cir. 2009)................... 21
Underhill v. Hernandez,

Ee ek Be i acicticntiinonitiedlacnsnpeninstisiinusiinain 15
Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)......................... 18
United States v. First Nat City Bank,

Se TE TOD ccccsitieiencéeiucicdsaaneaninaaanae y
United States v. Pink,
Re Bais Bee CD vcicicinsicttenscivtccsnsnienectaineatniaiaaaan 13
Verlinden B.V. v. Cent. Bank of Nigeria,

SE es Se i iicerntserierinstaiectiaiciiatsnhaiaunindieieaiiaiaabioeaiaa 4
Whiteman v. Republic of Austria,

O31 FBG OT GIG Cae. BD ccececccccvcsccccssccssevesceses 14
W.S. Kirkpatrick & Co. v. Envtl. Tectonics

Corp, 493 U.S. 400, 406 (1991).............. —'
Zivotofsky v. Clinton,

f Bs Bf eer :2,13
STATUTES
SD Wee BS BO tncneimniiidemaane passim
OTHER AUTHORITIES

Developments in the Law---Extraterritoriality,
124 Harv. L. Rev. 1226, 1245 (2011)................ 30

Mavrommatis Palestine Concessions,

-Vii-

P.C.I.J. Series A, No. 2, at 12 (1924) ............00..... 28

Michael D. Ramsey, Escaping “International
Comity, ”83 Iowa L. Rev. 893, 897 (1998) ........ 17

Brief for the United States as Amicus Curiae,
Doe v. Exxon Mobil, No. 07-81, 2007 U.S.
Briefs 81, 8-9 & 19 (May 16, 2008) .................. 14

Brief of the Federal Republic of Germany as
Amicus Curiae in Support of Respondents,
Kiobel v. Royal Dutch Petroleum Co., No.
10-1491, 2012 WL 379578 at 13 (Feb. 2,

EE passim

Brief of the Governments of Australia and the
United Kingdom of Great Britain and
Northern Ireland as Amici Curiae in
Support of the Petitioners on Certain
Questions Raised in the Petition for
Certiorari, Rio Tinto PLC v. Alexis
Holyweek Sarei, No. 11-649, 2011 U.S.
Briefs 649; 2011 WL 6934726 (Dec. 28,
i enssmhonnnaens 11, 27

Brief of Amicus Curiae the European
Commission in Support of Neither Party,
Sosa v. Alvarez-Machain, No. 03-339, 2004
WL 177036 at *24 (U.S.) (Appellate Brief)
a ceumpsnenenoonons 27

I linemiinnenee 1

Restatement (Third) of Foreign Relations Law
of the United States § 703 cmt. d (1987).... 28, 29

-Vili-

International Covenant on Civil and Political
Rights, art. 41(1)(c), opened for signature
Dec. 16, 1966, 999 U.N.T.S. 171 ..........00..000000.. 28

Organization of American States, American
Convention on Human Rights, art. 46, Nov.
Mm B.' £ k 2. 2 ee 28

European Convention for the Protection of
Human Rights and Fundamental
Freedoms, art. 35(1), Nov. 4, 1950, 213
RINE Ret eons eS eer 28

INTEREST OF AMICI CURIAE

Amici curiae respectfully submit this brief in
support of Petitioners, pursuant to Supreme Court
Rule 37.! Amici (listed in the Appendix) are
professors of civil procedure and federal courts who
have an interest in federal litigation and the proper
application of the Alien Tort Statute (“ATS”), 28
U.S.C. § 1350.

SUMMARY OF ARGUMENT

Federal and State courts routinely hear cases
relating to injuries suffered in other jurisdictions,
including, in particular, cases litigated pursuant to
the Alien Tort Statute, 28 U.S.C. § 1350. Any of
these cases may raise concerns about the proper
assertion of personal jurisdiction, international
comity, or the inconvenience of a U.S. forum. These
issues, however, can and should be addressed
without imposing territorial restrictions on the reach
of the ATS. Existing rules of personal jurisdiction,
along with prudential doctrines such as the political
question doctrine and forum non conveniens, directly
address the concerns raised by transnational
litigation. Proper application of these doctrines will
weed out problematic cases, without denying a forum
to the cases that are properly litigated in U.S. courts.

1 Pursuant to Rule 37.6, counsel for amici states that no
counsel for a party authored this brief in whole or in part, and
that no person other than amici or their counsel made a
monetary contribution to the preparation or submission of this
brief. Petitioners and respondent have filed a letter of consent
with the Clerk of the Court.

AR NT

EQUATE
ED BY
TRANSNATI TATUTE
CASES
INTRODUCTION

The Alien Tort Statute, 28 U.S.C. § 1350
(“ATS”), has historically been interpreted to apply to
conduct outside the United States. There is no need
to limit the reach of the statute in order to respond to
the constitutional or prudential issues that may arise
when U.S. courts assert jurisdiction over ATS claims
arising in the territory of foreign sovereigns.

Extraterritorial litigation may raise concerns
about personal jurisdiction, foreign affairs, or
efficiency. If the defendants and the claims have
insufficient contacts with the United States, a U.S.
assertion of jurisdiction will violate the Due Process
Clause of the Constitution. Such litigation may also
trespass on the foreign affairs powers of the U.S.
Executive Branch. Foreign states may view
adjudication of these claims as an interference with
their domestic sovereignty. Finally, litigation of
claims in the United States may be inefficient, if the
facts and the parties have no connection to the
United States.

Amici submit this brief to make only one
narrow point: each of these concerns is properly
addressed through case-by-case application of a

series of existing doctrines that allow the courts to
dismiss claims at an early stage if litigation would
constitute an excessive interference with U.S. foreign
policy or with foreign sovereignty, or if the parties
and the claims have insufficient ties to the United
States. To the extent that these concerns underlie
the question posed by this Court for reargument,?
they can be resolved through application of these
well-established doctrines and do not require that
the Court develop new doctrines or otherwise limit
the reach of the ATS.

By contrast, a blanket rejection of all ATS
claims arising in the territory of a foreign state
would be overbroad. First, it would reject claims
against U.S. defendants, even though U.S. law and
international law clearly permit states to assert
jurisdiction over their own citizens and residents for
claims arising in another state. If the United States
does not permit litigation against its own citizens
with respect to their tortious conduct overseas, such
conduct will often escape any review. Second, a
rejection of ATS claims arising in foreign states
would unnecessarily deny a forum for cases that do
not raise foreign policy concerns and in which there
is no alternative forum in which to seek remedies.
When U.S. courts have personal jurisdiction over a
defendant; when neither the U.S. nor any foreign
government objects; and when logistical obstacles
can be overcome and there is no alternative forum,

9°

2 This Court’s Order requesting supplemental! briefing
asked whether the Alien Tort Statute, 28 U.S.C. § 1350, “allows
courts to recognize a cause of action for violations of the law of
nations occurring within the territory of a sovereign other than
the United States.”

there is no reason to deny a hearing to a plaintiff
alleging egregious harm.

Pre-existing doctrines directly address the
potential problems triggered by extraterritorial ATS
cases. These doctrines were designed to respond
directly to the problems triggered by litigation
arising in the territory of a foreign sovereign. U.S.
courts routinely assert jurisdiction over claims
arising out of events in a foreign state if the courts
have personal jurisdiction over the defendants. See
Burnham v. Super. Ct. of Cal., 495 U.S. 604, 611
(1990), quoting Justice Story, Commentaries on the
Conflict of Laws §§ 554, 543 (1846) (“[Bly the
common law[,] personal actions, being transitory,
may be brought in any place, where the party
defendant may be found”). Our legal system
addresses the difficulties presented by some of these
extraterritorial claims through case-by-case
application of principles that protect against
interference with U.S. foreign policy or foreign

3 Since the Founding, our courts have heard cases, in
particular tort claims, relating to injuries suffered in other
jurisdictions. See, e.g., Republic of Austria v. Altmann, 541 U.S.
677, 685-86 & n.4 (2004); Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 491 (1983); Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437 (1952); Linder v. Portocarrero, 963
F.2d 332, 336 (11th Cir. 1992); see also Laker Airways Ltd. v.
Sabena, Belgian World Airlines, 731 F.2d 909, 926 (D.C. Cir.
1984) (regulating activities of businesses incorporated within
state is “one of the oldest and most established examples of
prescriptive jurisdiction”). Moreover, there is no dispute that
the United States has jurisdiction to regulate the conduct of its
own citizens and residents, wherever located. See, e.g.,
Skiriotes v. State of Florida, 313 U.S. 69, 73 (1941) (United
States not debarred from governing conduct of its own citizens
“upon the high seas or even in foreign countries”); Blackmer v.
United States, 284 U.S. 421 (1932).

sovereignty while also furthering efficiency and
convenience.

The relevant doctrines include personal
jurisdiction, political question, act of state, comity,
forum non conveniens, and exhaustion of domestic
remedies. As a group, these principles are effective
and generally non-controversial: cases that trigger
genuine foreign policy problems, or in which there is
no nexus to the United States and an alternative
forum in the place where the damage was inflicted,
can be dismissed at an early stage of litigation.

Sosa v. Alvarez-Machain, 542 U.S. 692, 733
(2004), recognized that application of these limiting
doctrines would weed out some cases that triggered
ATS jurisdiction. This Court in Sosa articulated a
narrow standard for defining ATS claims, id. at 732,
and then emphasized that the “requirement of clear
definition is not meant to be the only principle
limiting the availability of relief in the federal courts
for violations of customary international law, though
it disposes of this action.” Jd. at 733 n.21. Sosa
proceeded to discuss, as examples, both the
exhaustion of domestic remedies and the possibility

of “case-specific deference to the political branches.”
Td.

In earlier amicus briefs to this Court, foreign
states emphasized their concern about litigation in
U.S. courts over “torts committed on foreign soil by
foreign tortfeasors that injured foreign victims and
have no nexus to the United States.” Br. of the
Federal Republic of Germany as Amicus Curiae in
Support of Respondents, Kiobel v. Royal Dutch
Petroleum Co., No. 10-1491, (reargument scheduled),

2012 WL 379578 at 13 (Feb. 2, 2012) (“F.R.G. Br.
Amicus Curiae”). Note first that the foreign states
object to U.S. assertions of jurisdiction over foreign
tortfeasors, not over U.S. citizens and residents. If
those foreign defendants have no minimum contacts
with the United States, a claim will be dismissed for
lack of personal jurisdiction. If the case triggers
substantial foreign policy concerns, one of a group of
prudential] doctrines will point to dismissal. And, if
the case itself has no nexus with the United States
and the courts of a foreign state provide a more
convenient and adequate alternative forum, the case
may be dismissed on a forum non conveniens motion.
As discussed below, our courts entertain transitory
tort cases only where there is personal jurisdiction
over the defendant, and dismiss such cases if foreign
policy concerns so require or if there is an adequate
alternative forum and the balance of public and
private interests favors litigation in another state.

As with any area of the law, the difficulty
arises in the application of the rules at the margins,
to difficult cases where the litigants vociferously
object to a court’s decision to grant or deny a motion
to dismiss the U.S. litigation. But the presence of a
handful of hotly contested disputes is no reason to
distort basic rules of U.S. jurisdiction. Most ATS
cases are not controversial, because they involve
local defendants, because neither the U.S.
government nor a foreign government has objected to
the litigation, or because there is no alternative
forum available to litigate the claims. Most cases
involving a foreign defendant and an objection from a
foreign government or an adequate alternative forum
are dismissed. That is, these well-developed
doctrines effectively manage the problems triggered

by application of ATS claims arising in foreign
states. As a result, there is no need to respond to
these concerns by barring ATS jurisdiction over all
such claims. To the extent that these doctrines have
produced a small number of disputed results, the
solution lies in proper application of the traditional
doctrines, not in a major overhaul of the ATS
jurisprudence.

In this brief, amici analyze each of these
doctrines to demonstrate that they effectively weed
out cases that do not belong in U.S. courts. Amici
take no position on the application of these doctrines
to the facts of this case, and no position on other
issues pending in this case. We submit this brief only
to urge the Court to rely on these pre-existing
principles to address concerns about application of
the ATS to cases arising in foreign states.

A. PERSONAL JURISDICTION

The Due Process Clause of the Constitution
requires that a defendant have sufficient connection
to an individual state or to the United States as a
whole before a court may exercise jurisdiction over
that defendant. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. 2846 (2011); J. McIntyre
Mach., Ltd v. Nicastro, 131 S. Ct. 2780 (2011); Int7
Shoe Co. v. Washington, 326 U.S. 310 (1945).
Furthermore, the exercise of jurisdiction must be
reasonable. Shaffer v. Heitner,433 U.S. 186,
215 (1977); Intl Shoe, 326 U.S. at 316. The
requirement that a court must satisfy itself that each
defendant is properly subject to personal jurisdiction
can do much of the work necessary to ensure that
only cases with a sufficient connection to the United

States are heard in our courts and to minimize
foreign affairs friction.‘

This Court has described two distinct
categories of personal jurisdiction: specific
jurisdiction® and general jurisdiction. “[FJor an
individual, the paradigmatic forum for the exercise of
general jurisdiction is the individual’s domicile; for a
corporation it is an equivalent place, one in which
the corporation is fairly regarded as at home.”
Goodyear, 131 S. Ct. 2846, 2853-54; see also id. at
2851. For both specific and general jurisdiction, a
district court must determine that a defendant had
minimum contacts with a state or the United States
sufficient to satisfy “traditional notions of fair play

4 Amici understand that the Defendant did not challenge
personal jurisdiction over Defendant Royal Dutch Petroleum in
this case. Petitioners’ Supplemental Opening Brief, Kiobel v.
Royal Dutch Petroleum Co., No. 10-1491, at 4 (June 6, 2012).
Amici take no position on whether the court would have
properly asserted personal jurisdiction if Defendant had not
waived its personal jurisdiction challenge.

Specific jurisdiction is limited to cases in which a
defendant has “purposefully directed’ his activities at residents
of the forum and the litigation results from alleged injuries that
‘arise out of or relate to’ those activities.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (internal citations
omitted); see also Goodyear, 131 S. Ct. at 2853.

6 General jurisdiction requires a defendant to have the
kind of continuous and systematic general business contacts
that justify suit on causes of action distinct from those
activities. Goodyear, 131 S. Ct. at 2853; Helicopteros Nacionales
De Colom. v. Hall, 466 U.S. 408,416 (1984). Even continuous
activity “of some sorts” is not enough to support general
jurisdiction. Goodyear, 131 S. Ct. at 2856 (citing Int? Shoe, 326
U.S. at 318).

and substantial justice.” Int? Shoe, 326 U.S. at 316.
In Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102,
115 (1987), a seven member majority of this Court
explained that a court’s inquiry into the
reasonableness of asserting jurisdiction should take
into account “[t}]he procedural and substantive
interests of other nations” and “the Federal
Government’s interest in its foreign relations
policies.” The Court cautioned that those interests
are best served by “an unwillingness to find the
serious burdens on an alien defendant outweighed by
minimal interests on the part of the plaintiff or
forum State” and that “[g]reat care” should be
exercised “when extending our notions of personal
jurisdiction into the international field.” Jd. (citing
United States v. First Natl City Bank, 379 U.S. 378,
404 (1965) (Harlan, J., dissenting).

Many of the complaints about hypothetical
ATS cases raised by foreign States, including the
Federal Republic of Germany and the Governments
of the United Kingdom of Great Britain and
Northern Ireland and the Kingdom of the
Netherlands, address fact settings in which it is
likely personal jurisdiction in the United States does
not exist: “torts committed on foreign soil by foreign
tortfeasors that injured foreign victims and have no
nexus to the United States.” F.R.G. Br. Amicus
Curiae at 13. Where a defendant is not a U.S. citizen
and has insufficient other contacts with the United
States, the assertion of jurisdiction would be
unconstitutional, and a motion to dismiss for lack of

personal jurisdiction will dispose of the case
expeditiously.’

Most ATS claims, however, involve defendants
who are citizens or residents of the United States.
Personal jurisdiction in most cases is based on the
physical presence of an individual defendant. The
foreign states that have submitted briefs in ATS
cases all agree there is no bar under international
law to a State regulating conduct of its own citizens
or residents, even if their conduct takes place
elsewhere. F.R.G. Br. Amicus Curiae at 12; Brief of
the Governments of the United Kingdom of Great
Britain and Northern Ireland and The Kingdom of
the Netherlands as Amici Curiae in Support of the
Respondents, Kiobel v. Royal Dutch Petroleum Co.,
No. 10-1491 (reargument scheduled), 2012 WL
405480 at 30 (recognizing exercise of prescriptive
jurisdiction in relation to conduct of own citizens,
wherever located); see also Motion for Leave to File
Brief as Amici Curiae and Brief of the Governments

7 Cases in which personal jurisdiction over an individual
defendant is based on personal service while physically present
in the forum case, see Burnham, 495 U.S. 604 (finding personal
jurisdiction based on such “tag” or “transient” jurisdiction to be
constitutional), can be litigated in a U.S. forum that has no
other connections to the case. Tag jurisdiction, however, does
not apply to a foreign corporation. Any assertion of personal
jurisdiction over a corporation must satisfy the “at home”
standard of general jurisdiction, Goodyear, 131 S. Ct. at 2853-
54, and/or meet the relatedness standards of specific
jurisdiction, Nicastro, 131 S. Ct. at 2787-88. Moreover, to the
extent that tag jurisdiction may allow a court to exercise
personal jurisdiction over a foreign, non-resident defendant, the
doctrine of forum non conveniens provides an effective remedy
to redress any abuse of this jurisdictional device. See infra,
pages 20-27.

10

of Australia and the United Kingdom of Great
Britain and Northern Ireland as Amici Curiae in
Support of the Petitioners on Certain Questions in
their Petition for a Writ of Certiorari at 5 & 14, Rio
Tinto v. Sarei, No. 11-649 (cert. pending), 2011 WL
6934726. For example, the Federal Republic of
Germany explained that its legal system “allows
plaintiffs to pursue violations of customary
international law by German tortfeasors in German
courts. .. . German nationals and nationals of other
countries who are the victims of such torts are
entitled to file an action.” F.R.G. Br. Amicus Curiae
at 11. The brief concludes: “[I]t is certainly
reasonable and appropriate to require a victim of a
tort committed in a third country by a German
tortfeasor to go to Germany and utilize the legal
system of the Federal Republic of Germany to seek
legal satisfaction.” Id. at 13.8

The standard rules of personal jurisdiction,
properly applied as in other civil litigation, will weed
out the cases that these foreign governments find
most troublesome, those in which neither the parties
nor the claims have any connection with the United
States.

B. FOREIGN POLICY CONCERNS

The federal courts can rely on several pre-
existing doctrines to respond to the concern that ATS
claims interfere with the foreign affairs powers of the
Executive Branch or with the domestic sovereignty of

8 In Goodyear, this Court observed that France permitted
the exercise of jurisdiction based on a plaintiffs French
nationality. Goodyear, 131 S. Ct at 2857 n.5.

1]

foreign states, including the political question
doctrine, the act of state doctrine, and comity.

1. POLITICAL QUESTION DOCTRINE

The political question doctrine “speaks to an
amalgam of circumstances” in which a court may
decline to adjudicate a particular suit. Zivotofsky v.
Clinton, 132 S. Ct. 1421, 1431 (2012) (Sotomayor, J.,
concurring). Courts undertake a _ case-by-case
analysis to determine whether maintenance of a suit
“accords appropriate respect to the other branches’
exercise of their own constitutional powers.” Id.; see
also Sosa v. Alvarez Machain, 542 U.S. at 733 n.21
(suggesting application of “case-specific deference to
the political branches” in the appropriate case);
Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S.
221, 230 (1986) (political question doctrine “excludes
from judicial review those controversies which
revolve around policy choices and _ value
determinations constitutionally committed for
resolution to the halls of Congress or the confines of
the Executive Branch”).?

9 Cases may be dismissed on political question grounds
where they involve:

[A] textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of a
kind clearly for mnonjudicial discretion; or the
impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment

12

Foremost among the cases found to pose a
political question are those in the sphere of foreign
relations. Zivotofsky, 132 S. Ct. at 1438 (Breyer, J.,
dissenting); Baker, 369 U.S. 186, 211 (1962) (citing
cases); see also Am. Ins. Ass’n v. Garamendi, 539
U.S. 396 (2003); United States v. Pink, 315 U.S. 2038,
242 (1942) (“In our dealings with the outside world,
the United States speaks with one voice and acts as
one... .”); Oetjen v. Cent. Leather Co., 246 U.S. 297,
302 (1918) (“[t]he conduct of the foreign relations of
our government is committed by the Constitution to
the Executive and Legislative -- ‘the political’ --
Departments of the Government”). For example, the
Ninth Circuit easily and unanimously affirmed the
district court’s dismissal of ATS claims against
Caterpillar Inc., for selling bulldozers to the Israeli
Defense Forces. Corrie v. Caterpillar, 503 F.3d 974
(9th Cir. 2007). The District of Columbia Circuit
similarly affirmed the lower court decision to
dispense with claims by villagers against the United
States and individual defendants arising out of their
forcible removal from their homes in the Indian
Ocean in order to construct a military base.
Bancoult v. McNamara, 445 F.3d 427 (2006). See
also Alperin v. Franciscan Order, 423 Fed. Appx. 678
(9th Cir. 2011) (dismissal on political question
grounds); El-Shifa Pharm. Indus. v. United States,
607 F.3d 836 (D.C. Cir. 2010), cert. denied, 131 S. Ct.
997 (2011) (same); Carmichael v. Kellogg, Brown &
Root Serv., 572 F.3d 1271, (11th Cir. 2009) (same);

from multifarious pronouncements by various
departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962).

13

Hereros v. Deutsche Afrika-Linien Gmbit & Co., 232
Fed. Appx. 90 (3d Cir. 2007) (same); Gonzalez-Vera v.
Kissinger, 449 F.3d 1260 (D.C. Cir. 2006) (same);
Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir.
2005) (same); Whiteman v. Republic of Austria, 431
F.3d 57 (2d Cir. 2005) (same); Schneider v. Kissinger,
412 F.3d 190 (D.C. Cir. 2005) (same).

In other cases, courts have declined to dismiss
a case on political question grounds, but in some of
those cases the defendants have exaggerated the
foreign policy effects or overstated the State
Department’s position. See, e.g., Doe v. Exxon Mobil,
473 F.3d 345, 354 (2007) (Sentelle, J.) (“We disagree
with Exxon’s contention that there is a conflict
between the views of the State Department and
those of the district court.”); see also Brief for the
United States as Amicus Curiae, No. 07-81, 2007
U.S. Briefs 81, 8-9 & 19 (May 16, 2008), cert. denied,
Exxon Mobil Corp. v. Doe, 554 U.S. 909 (2008)
(observing that the “court of appeals reasonably
regarded” the appeal as “based on an assertion by
private defendants, not by the Executive, that the
litigation itself would have adverse consequences for
the Nation’s foreign policy interests” and noting that
the opinion indicates that if the Court “had believed
the circumstances of this case to be as petitioners
paint them, petitioners would have been granted the
relief they seek”); cf. Sarei v. Rio Tinto, 487 F.3d
1193, 1206-07 (9th Cir. 2007) (reversed on other
grounds) (given “guarded nature” of U.S. Statement
of Interest, “[w]hen we take the SOI into
consideration and give it ‘serious weight,’ we still
conclude that a political question is not presented”);
see also Sarei v. Rio Tinto, 671 F.2d 736, 756 (9th
Cir. 2011) (en banc) (U.S. government “has told this

14

court in its briefs that it no longer believes foreign
policy concerns are material in this case and has
expressly stated that it is not ‘seeking dismissal of
the litigation based on purely case-specific foreign
policy concerns.’ Thus, there is no longer any basis
for a fear of interference by the courts in the conduct
of foreign affairs.”).

2. ACT OF STATE DOCTRINE

The basis of the act of state doctrine is the
principle that “[e]very sovereign State is bound to
respect the independence of every other sovereign
State, and the courts of one country will not sit in
judgment on the acts of the government of another
done within its own territory.” Underhill ov.
Hernandez, 168 U.S. 250, 252 (1897). The doctrine is
applicable “when a court must decide -- that is, when
the outcome of the case turns upon -- the effect of
official action by a foreign sovereign.” WS.
Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S.
400, 406 (1991). Thus, when an ATS case challenges
the “official action” of a foreign sovereign, the act of
state doctrine may support dismissal of the claims.

According to Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 427-28 (1964), a court
considering the applicability of the act of state
doctrine looks at several factors, including the
“degree of codification or consensus concerning a
particular area of international law,” the importance
of the “implications of an issue for our foreign
relations” and whether “the government which
perpetrated the challenged act of state” is still in
existence. This prudential doctrine therefore serves
as an effective tool to prevent A’'’S litigation from

15

intruding into the foreign affairs powers of the
Executive Branch and to block the adjudication of
claims that improperly intrude into the domestic
sovereignty of foreign states.

Since the doctrine applies whenever a court
“must decide -- that is, when the outcome of the case
turns upon -- the effect of official action by a foreign
sovereign,” W.S. Kirkpatrick, 493 U.S. at 406, the
doctrine may be invoked by private parties. See, e.g.,
Clayco Petroleum Corp. v. Occidental Petroleum
Corp., 712 F.2d 404, 408 (9th Cir. 1983).

ATS claims were dismissed, in part, under the
act of state doctrine in Doe v. Israel, 400 F. Supp. 2d
86, 114 (D.D.C. 2005) (“[t]o permit the validity of
the acts of [Israel] to be reexamined and perhaps
condemned by the courts of [the United States]
would very certainly imperil the amicable relations
between [those] governments and vex the peace of
nations,” quoting Sabbatino, 376 U.S. at 415. In Doe
v. Lui Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004),
Falun Gong practitioners sued the mayor of Beijing
and a deputy provincial governor alleging they were
detained and tortured. The court found that the act
of state doctrine applied to acts that are covertly
authorized, and therefore “ratified,” by the
government, even if against domestic law. }°

10 The act of state doctrine is not used more often in ATS
cases because Sosa requires that ATS claims be based on
international norms with “definite content and acceptance
among civilized nations” equivalent to “the historical paradigms
familiar when section 1350 was enacted.” 542 U.S. at 732. Asa
result, foreign states rarely declare that the violations at issue
are the public policy of that state.

16

When ATS cases challenge acts that are the
official acts of a foreign government, the act of state
doctrine provides another means by which courts
ensure that those cases do not trespass on the
foreign affairs powers of the U.S. Executive Branch
or interfere with the domestic sovereignty of foreign
states.

3. COMITY

The comity doctrine responds directly to
concerns about adjudication of claims that involve
more than one sovereign state. “Comity refers to the
spirit of cooperation in which a domestic tribunal
approaches the resolution of cases touching the laws
and interests of other sovereign states.” Societe
Nationale Industrielle Aerospatiale v. United States
Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 544
n.27 (1987). International comity guides the federal
courts where “the issues to be resolved are entangled
in international relations.” In re Maxwell Commc’n
Corp., 93 F.3d 1036, 1047 (2d Cir.1996).!!

Comity today is invoked when courts decline
to assert jurisdiction in deference to “the interests of
our government, the foreign government and the

ul The term “comity” is used to refer to multiple doctrines.
See generally Michael D. Ramsey, Escaping ‘International
Comity, ” 83 Iowa L. Rev. 893, 897 (1998) (describing numerous
strands of the comity doctrine). In the context of ATS claims,
comity generally refers to limits on the reach of the U.S. courts,
and authorizes courts to decline jurisdiction over matters more
appropriately adjudicated in another forum.

17

international community in resolving the dispute in
a foreign forum.” Ungaro-Benages v. Dresdner Bank
AG, 379 F.3d 1227, 1238 (11th Cir. 2004). The
doctrine thus addresses concerns expressed by
foreign governments who suggest that their own
courts provide a more appropriate forum for
resolution of claims that involve foreign parties and
facts that arise in a foreign state. As stated by the
Federal Republic of Germany, in a brief submitted to
this Court, “[i]Jt is reasonable to request that the
United States courts exercise judicial restraint,
under the principle of international comity, and take
into account the availability of venues with a more
significant nexus before applying the ATS to torts
committed on foreign soil by foreign tortfeasors that
injured foreign victims and have no nexus to the
United States.” F.R.G. Br. Amicus Curiae at 13.

In Ungaro-Benages, the Eleventh Circuit
dismissed claims arising out of the seizure by the
Nazi government of plaintiffs family’s property. The
court assessed the interests of the U.S. and German
governments and the alternative forum offered as a
result of a U.S.-German agreement to resolve Nazi-
era compensation claims. 379 F.3d at 1239-40. By
contrast, courts have declined to dismiss claims
based on comity where a foreign State did not object
to the litigation. In Bigio v. Coca-Cola Company, 448
F.3d 176, 178 (2d Cir. 2006), affd, 675 F.3d 163 (2d
Cir. 2012) for example, the Second Circuit declined to
dismiss on the basis of international comity when the
foreign state expressed no objection to the
adjudication of the controversy by United States
courts. The Bigio court described international
comity as “a discretionary act of deference by a
national court to decline to exercise jurisdiction in a

18

case properly adjudicated in a foreign state.” Id.
(Quoting Jn re Maxwell Comm. Corp., 93 F.3d 1036,
1047 (2d Cir. 1996)).

A dismissal based on comity would also be
inappropriate where the proposed alternative forum
is not capable of fairly resolving the claim. As the
Federal Republic of Germany emphasized in its
amicus brief, “it would certainly be inappropriate to
require plaintiffs to exhaust their legal remedies in
countries which have a proven record of human
rights violations and no due process... .” F.R.G.
Br. Amicus Curiae at 13. !”

The comity doctrine serves as one means by
which courts can decline adjudication of ATS
litigation that infringes on the sovereignty of foreign
States.

C. FORUM NON CONVENIENS

The doctrine of forum non conveniens directly
addresses concerns about whether claims arising in
the territory of a foreign state are properly litigated
in the U.S. courts. Simply put, if a claim has no
nexus to the United States, and there is an
alternative, more convenient forum in which the
claim can be litigated, the district court should grant

12 Forum non conveniens motions will be denied when the
legal system of the state where the abuses took place does not
offer the plaintiffs a fair hearing. However, as more legal
systems develop the willingness to handle human mnghts cases
in accordance with due process, fewer such claims will be
litigated outside the forum in which the incidents occurred.

19

a forum non conveniens motion.!% As this Court has
noted, “The principle of forum non convenience is
simply that a court may resist imposition upon its
jurisdiction even when jurisdiction is authorized by
the letter of a general venue statute.” Gulf Oil Corp.
v. Gilbert, 330 U.S. 501, 507 (1947). Dismissal for
forum non conveniens reflects a court’s assessment of
a “range of considerations, most notably the
convenience to the parties and the _ practical
difficulties that can attend the adjudication of a
dispute in a certain locality.” Sinochem Intl Co.,
Ltd. v. Malaysia Intl Shipping Corp., 549 U.S. 422,
429-30 (2007) (quoting Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 723 (1996)). A federal court has
discretion to dismiss a case on the ground of forum
non conveniens when litigation in the U.S. court
would impose a burden on the defendant out of
proportion to the plaintiffs convenience. Jd. A court
may also grant a forum non conveniens motion when
“the chosen forum [fis] inappropriate because of
considerations affecting the court’s own
administrative and legal problems.” Jd. (internal
quotations and additional citations omitted).

The forum non conveniens doctrine clearly
applies to ATS cases. Thus a federal court presented
with a claim under the ATS has the power to dismiss
a case where that case would be more appropriately
brought in a foreign court. Indeed, as detailed below,

13 Amici understand that Defendant in this case did not
file a motion to dismiss for forum non conveniens. Petitioners’
Supplemental Opening Brief, Kiobel v. Royal Dutch Petroleum
Co., No. 10-1491, at 4 (June 6, 2012). Amici take no position on
how a forum non conveniens analysis would have applied to the
facts of this case.

courts have applied the doctrine to dismiss cases
brought under the ATS. These decisions reflect the
success of the doctrine in excluding from U.S. courts
cases that are more properly litigated in a foreign
forum.

Forum non conveniens requires a two-step
inquiry into whether an adequate alternative forum
exists and, if so, whether private and public interest
factors, in balance, favor dismissing the case. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981).
Ordinarily, the requirement that an adequate
alternative forum exists is satisfied when the
defendant is amenable to process in the foreign
jurisdiction. Gilbert, 330 U.S. at 506-507. The
defendant thus has the ability to meet the
requirement of availability by agreeing to submit to
the jurisdiction of the foreign forum. See, e.g.,
Aguinda v. Texaco, Inc., 303 F.3d 470, 475-76 (2d
Cir. 2002) (upholding FNC dismissal after defendant
consented to Ecuadorian jurisdiction); Barboza uv.
Drummond Co., No. 06-61527, slip op. at 6 (S.D. Fla.
July 17, 2007) (in a case brought by Colombian
plaintiffs for injuries incurred in Columbia,
Colombian courts deemed. “available” because of
defendants voluntary submission to the Colombian
court’s jurisdiction).

U.S. courts generally assume that the courts
of a foreign state are adequate and available to
resolve claims arising in their territory. Gilbert, 330
U.S. at 506-07. Thus, our courts routinely reject
claims that foreign courts are inadequate because of
corruption or administrative problems. In Turedi v.
Coca Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009), for
example, the Second Circuit upheld the district

21

court’s finding that Turkey was an adequate forum,
relying on the uncontradicted declarations of three
Turkish law experts who concluded that Turkish law
contained procedural and substantive provisions
providing the plaintiffs with adequate remedies. Id.!4

In some cases involving allegations of human
rights violations, the courts of the state where the
abuses occurred may not offer an adequate
alternative forum because of the potential danger to
the plaintiffs. Cf. Rasoulzadeh v. Associated Press,
574 F. Supp. 854, 861 (S.D.N.Y. 1983) (denying
motion for FNC dismissal because, “if the plaintiffs
returned to Iran to prosecute this claim, they would
probably be shot.”). Plaintiffs’ allegations that they
would be in danger, however, do not automatically
require dismissal of a forum non conveniens motion.
In Aldana v. Del Monte Fresh Produce N.A., Inc., 578
F.3d 1283 (11th Cir. 2009), for example, the Eleventh
Circuit went so far as to affirm a forum non
conveniens dismissal of claims arising out of alleged
human rights abuses in Guatemala, despite
plaintiffs’ claim that Guatemala was not safe for
them. The Eleventh Circuit found that a proviso
that the dismissal would be reconsidered if there
were any indication that the plaintiffs would be
required to return to Guatemala to prosecute their

4 Each defendant had agreed that, if plaintiffs “commence
litigation in Turkey arising out of the circumstances and
genera! claims asserted” in this case, it will (a) accept service of
process and the Turkish court's exercise of personal
jurisdiction; (b) not assert statute of limitations defenses in
Turkey that would be unavailable here; and (c) satisfy any final
judgment issued by a Turkish court. /d. at 626.

ta
to

suit was sufficient to meet the plaintiffs’ concerns.
Id. at 1291.

The forum non conveniens doctrine permits
the courts to deny dismissal of claims in the small
number of cases that involve events in foreign states
but are properly litigated in U.S. courts because
there is no alternative forum, as when ongoing
human rights violations render the proposed forum
dangerous. For example, in Licea v. Curacao
Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla.
2008), the plaintiffs, Cuban nationals, filed suit after
they had escaped from Curacao and obtained
political asylum. The plaintiffs alleged that the
Cuban government and the defendants, with the
support of the Curacao government, had conspired to
traffic them to Curacao where they were detained in
slave-like conditions and forced to work, without pay,
for the defendant.'® The court denied a forum non
conveniens motion after finding that plaintiffs had a
reasonable fear for their safety if they returned to
Curacao, a country to which they went only under
force, and where they were detained, abused, and
allegedly pursued when they sought to escape, by
both Cuban government agents and a private
security firm hired by the defendant. Jd. at 1275.
With neither Curacao nor Cuba providing an
adequate alternative forum, U.S. courts offered the
only possible remedy for these plaintiffs, who were,
at the time the lawsuit was filed, living in the United
States. See also Presbyterian Church of Sudan v.
Talisman Energy, Inc., 244 F. Supp. 2d 289, 335-36

16 Defendants admitted that they had paid part of the
plaintiffs’ earnings to the government of Cuba. /d. at 1272.
Plaintiffs alleged that the forced labor regime was designed, in
part, to evade U.S. sanctions on the government of Cuba. Id.

23

(S.D.N.Y. 2003), dismissed on other grounds, 582
F.3d 244 (2d Cir. 2009) (finding that Sudan was not
an adequate alternative forum because of allegations
that the government of Sudan was involved in a
genocidal campaign against the plaintiffs). In such
cases, the U.S. court is an appropriate forum
precisely because the foreign state denies the
plaintiffs a forum in which they can raise their
claims.

Although a plaintiffs decision to file in the
United States receives substantial deference when
the plaintiff is a citizen or resident of the United
States, foreign plaintiffs do not receive the same
degree of deference. Piper, 454 U.S. at 255-56, 256
n.23. In this way, the forum non conveniens doctrine
again responds directly to the concerns triggered by
claims by foreign plaintiffs based on events that take
place in a foreign state.

If a foreign state offers an adequate
alternative forum, a court will grant a forum non
conveniens motion if the private and public factors
weigh in favor of dismissal. This Court has directed
the district courts to consider private interest factors
including the degree to which the plaintiff or the
lawsuit has a bona fide connection to the United
States and to the forum of choice, and the degree to
which considerations of convenience favor the
conduct of the lawsuit in the United States. Jd. The
public interest factors include lessening congestion in
the courts, having local controversies decided locally,
not imposing jury duty on people in a community
that has no interest in the litigation, and avoiding
the difficulty of applying foreign law. Gilbert, 330
U.S. at 508-09. These same factors are analyzed in

24

ATS cases.

Aldana, for example, analyzed the Gilbert
factors and concluded that the balance weighed in
favor of dismissal. The Court approved a district
court’s findings pointing to the ease of access to
sources of proof, including the fact that the alleged
misconduct occurred in Guatemala and significant
expense would be incurred in transporting evidence
to the United States from Guatemala. The court also
considered additional practical and _ logistical
difficulties, including, for example, the fact that few
of the witnesses were able to speak English.

As to the public interest facts, the Aldana
court noted that the dispute was “quintessentially
Guatemalan,” involving “one of Guatemala’s largest
private employers in one of Guatemala’s most
important economic sectors” and “one of Guatemala’s
most influential labor unions.” The district court
concluded that while “there is a strong public
interest in favoring the receptivity of United States
courts to [torture] claims under 28 U.S.C § 1350,
there is a greater policy interest in preventing forum
shopping, as well as in protecting comity between the
United States and other nations and other such
interests.” 578 F. 3d at 1299, 1305. On appeal, the
Eleventh Circuit affirmed the forum non conveniens
dismissal, concluding: “Since the underlying events
took place in Guatemala, all of the individuals
involved were (at least at the time) Guatemalan
citizens, and Guatemalan political and economic
tensions form the essential backdrop to the entire
dispute, we are hard-pressed to say that the district
court abused its discretion in reaching this
conclusion... .” Id. at 1299-1300.

25

By contrast, in a case involving a U.S.
corporation, with the key witnesses and evidence in
the United States, the Second Circuit denied a forum
non conveniens motion. Bigio v. Coca Cola Co., 448
F.3d at 179-80. In that case, in addition to the
location of witnesses and evidence, the plaintiffs
informed the court that they had been unsuccessful
in a prior attempt to litigate in Egypt. Jd. In looking
to the public interest, the court concluded that the
U.S had a significant interest in whether a U.S.
company should be held liable for the confiscation of
plaintiffs’ property. Moreover, Egypt raised no
objection to the U.S. court deciding this case.

Proper application of the forum non
conveniens doctrine to ATS claims will prevent the
inappropriate use of U.S. courts. Im cases that
involve foreign plaintiffs, foreign defendants, and
foreign claims, and have no nexus to the United
States, forum non conveniens motions will generally
be granted, except for the rare cases in which the
courts of the state where the abuses took place do not
satisfy the forum non conveniens doctrine’s adequate
alternative forum requirement.'® As in any area of
the law, difficult cases inevitably foster controversy
about the proper application of the doctrine. Those
exceptional cases, however, should not lead to
creation of a new rule that would reject all ATS
claims arising in foreign states.

16 In cases in which there is no adequate alternative
forum, dismissal of a case filed in a U.S. court would deny the
plaintiffs of any remedy at all. But even such cases will be
heard in our courts only if none of the other doctrines discussed
in this brief require dismissal.

26

D. EXHAUSTION OF DOMESTIC
REMEDIES

Some courts have responded to concerns about
asserting jurisdiction over claims that arise in
foreign States by imposing a requirement that the
plaintiff exhaust domestic remedies before
attempting to sue in this country.'? As applied to
U.S. human rights litigation, the doctrine may call
for dismissal if the claimant has not attempted to
obtain redress through adequate, available remedies
in the place where the injuries occurred.

The international law doctrine of exhaustion
of domestic remedies originated in the requirement
that a citizen of one state who is injured in a foreign
state must exhaust remedies in the state where the
injury occurred before asking his or her own

17 In this and related cases, representatives of foreign
governments have suggested to this Court that imposition of an
exhaustion requirement would respond to concerns about U.S.
assertions of jurisdiction over claims that arise in other States.
See, e.g., Brief of Amicus Curiae the European Commission in
Support of Neither Party, Sosa v. Alvarez-Machain, No. 03-339,
2004 WL 177036 at *24 (U.S.) (Appellate Brief) (Jan. 23, 2004)
(urging imposition of an exhaustion requirement and stating
that “an exercise of universal civil jurisdiction should be
predicated on a showing that there was no reasonable prospect
of redress in either a State exercising jurisdiction on a
traditional basis or through an international mechanism.”). See
also F.R.G. Br. Amicus Curiae at 13-15 (exhaustion of domestic
remedies should be required in ATS cases); Brief of the
Governments of Australia and the United Kingdom of Great
Britain and Northern Ireland as Amici Curiae in Support of the
Petitioners on Certain Questions Raised in the Petition for
Certiorari, Rio Tinto PLC v. Alexis Holyweek Sarei No. 11-649,
2011 U.S. Briefs 649 (Dec. 28, 2011) (same).

27

government to take up the dispute with the foreign
government. See Banco Nacional de Cuba v.
Sabbatino, 376 U.S. at 422-23 (“the usual method for
an individual to seek relief’ for a wrong occurring in
a foreign state, “is to exhaust local remedies and
then repair to the executive authorities of his own
state to persuade them to champion his claim in
diplomacy or before an international tribunal.”);
Mavrommatis Palestine Concessions case, P.C.1.J.
(1924), Series A, No. 2, at 12 (noting that a State is
entitled to espouse the claims of its citizens for
injuries inflicted by another State only if the citizens
“have been unable to obtain satisfaction through the
ordinary channels.”); Restatement (Third) of Foreign
Relations Law of the United States § 703 cmt. d
(1987) (same). Several international treaties require
that petitioners exhaust remedies in the place where
the injury occurred before filing complaints with
human rights tribunals. See, e.g., International
Covenant on Civil and Political Rights, art. 41(1)(c),
opened for signature Dec. 16, 1966, 999 U.N.T.S. 171
(requiring exhaustion of domestic remedies);
Organization of American’ States, American
Convention on Human Rights, art. 46, Nov. 22, 1969,
1144 U.N.T.S. 123 (same); European Convention for
the Protection of Human Rights and Fundamental
Freedoms, art. 35(1), Nov. 4, 1950, 213 U.N.T.S. 221
(same).

As incorporated into the Torture Victim
Protection Act, 28 U.S.C. § 1350 (note), the
exhaustion doctrine instructs the courts to dismiss a
claim “if the claimant has not exhausted adequate
and available remedies in the place in which the
conduct giving rise to the claim occurred.” Id. at §
2(b). The TVPA requirement that such remedies be

28

both “adequate” and “available” tracks the identical
requirement in international law. See Restatement
(Third) § 703 cmt. d (noting international law
requirement that claimant exhaust “available”
remedies).

Although the Alien Tort Statute does not
specify that domestic remedies must be exhausted,
this Court in Sosa stated that it would “certainly
consider” an exhaustion requirement “in = an
appropriate case.” 542 U.S. at 733 n.21. In response,
the Ninth Circuit imposed a_ requirement of
“prudential exhaustion” that led to the dismissal of
several ATS claims. Sarei v. Rio Tinto plc, 550 F.3d
822 (9th Cir. 2008) (en banc), on remand, 650 F.
Supp. 2d 1004 (C.D. Cal. 2009), affd in part, rev'd in
part, 671 F.3d 736 (9th Cir. 2011), pet. for cert. filed,
80 BNA U.S.L.W. 3335 (Nov 23, 2011) (No. 11-649). !8
Sarei explained that “prudential exhaustion” may
require exhaustion of domestic remedies where the
nexus to the United States is weak and the claims do
not involve human rights violations of universal
concern. Jd. at 831. On remand, the district court
held that exhaustion would be required for several
claims. Sarei, 650 F. Supp. 2d at 1031. On appeal,
the Ninth Circuit affirmed the district court’s
application of the exhaustion doctrine. Sarei, 671
F.3d at 754-55.

18 The D.C. Circuit noted the possibility of an exhaustion
requirement in Doe v. Exxon Mobil Corp., 654 F.3d 11, 26-27
(D.C. Cir. 2011), but declined to dismiss claims on appeal! in
light of the District Court’s “unchallenged” finding that efforts
to litigate the claims in the home country would be “futile.” Zd.;
but see Jean v. Dorelien, 431 F.3d 776, 781 (lith Cir. 2005)
(stating, without further discussion, “[T]he exhaustion
requirement does not apply to the AT[S]”).

29

The exhaustion of domestic remedies doctrine
responds directly to the concerns over efficient
dispute resolution and respect for the sovereignty of
foreign States that are central to the debate about
over extraterritorial ATS claims.’ As one
commentator noted, by imposing a _ prudential
exhaustion requirement, the Ninth Circuit has
“significantly constrained the most aggressive
extraterritorial applications of the ATS.”
Developments in the Law---Extraterritoriality, 124
Harv. L. Rev. 1226, 1245 (2011).

CONCLUSION

Through application of the well-established
doctrines discussed in this brief, the courts can
effectively respond to the concerns raised by ATS
claims arising in the territory of foreign sovereigns.
It is not necessary to preclude litigation of all such
claims in order to avoid interfering with the powers ~
of the Executive Branch or infringing on the

19 U.S. domestic law imposes exhaustion of remedies
requirements that respond to the same concerns as the
international doctrine. Exhaustion of administrative or local
remedies promotes efficiency by encouraging a local fact-finding
body to resolve the controversy. McCarthy v. Madigan, 503
U.S. 140, 145 (1992), superseded by statute as stated in Booth v.
Churner, 532 U.S. 731, 732 (2001). Exhaustion also promotes
comity, by affording respect to the decision-making authority of
a local tribunal. See, e.g., Castille v. Peoples, 489 U.S. 346, 349
(1989) (noting that exhaustion requirement is “grounded in
principles of comity.”); Jowa Mut. Ins. Co. v. LaPlante, 480 U.S.
9, 14-15 (1987) (explaining that tribal] court exhaustion reflects
the fact that Indian tribes retain attributes of sovereignty).
Exhaustion also serves to avoid “unnecessary conflict” between
separate judicial systems. Ex Parte Royall, 117 U.S. 241, 251
(1886).

sovereignty of foreign states, or to ensure that claims _
are dismissed in favor of litigation in a more
convenient forum.

Respectfully submitted,

ALLAN IDES
Counsel of Record
LOYOLA LAW SCHOOL
LOS ANGELES
919 Albany Street
Los Angeles, CA 90015
(213) 736-1464
idesa@lls.edu

Theresa M. Traber

Bert Voorhees

Traber & Voorhees

128 N. Fair Oaks Avenue
Pasadena, CA 91103

Tel: (626) 585-9611

Fax: (626) 585-1400
tmt@tvlegal.com

June 11, 2012 Counsel for Amici Curiae

31]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A093. Public record. Not legal advice.